Steven A. Olson, Appellant, vs. The Burlington Northern and Santa Fe Railway Company, Respondent.

Steven A. Olson, Appellant, vs. The Burlington Northern and Santa Fe Railway Company, Respondent. A05-2126, Court of Appeals Unpublished, August 22, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2126

 

Steven A. Olson,

Appellant,

 

vs.

 

The Burlington Northern and

Santa Fe Railway Company,

Respondent.

 

Filed August 22, 2006

Reversed and remanded Willis, Judge

 

Hennepin County District Court

File No. PI 02-008021

 

Charles T. Hvass, Jr., Ingebritson & Associates, LLP, 1025 Medical Arts Building, 825 Nicollet Mall, Minneapolis, MN  55402 (for appellant)

 

Timothy K. Masterson, Spence, Ricke, Sweeney & Gernes, P.A., 600 Degree of Honor Building, 325 Cedar Street, St. Paul, MN  55101 (for respondent)

 

            Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Parker, Judge.*

           
U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

This is an appeal from summary judgment granted to respondent railroad on appellant's negligence claim under the Federal Employers' Liability Act (FELA).  Appellant argues that (a) the district court improperly made findings of fact to determine that the railroad did not breach a duty to appellant; and (b) the district court improperly weighed the facts to determine that the railroad's alleged negligence was not the cause of appellant's lung injury.  Appellant also requests that this case be remanded with directions that a different judge be assigned for trial.  Because we conclude that for FELA purposes, appellant produced sufficient evidence to create a question of fact regarding the railroad's breach of duty and the causation of appellant's lung injury, we reverse.  Because appellant did not file a notice to remove the trial judge under Minn. R. Civ. P. 63.03 and has not demonstrated disqualifying bias or prejudice, we deny appellant's request to direct that a new judge be assigned to hear this case on remand. 

FACTS

Appellant Steven A. Olson was employed by respondent Burlington Northern and Santa Fe Railway Company (Burlington Northern) from 1970 until 1998.  Olson claims that he was exposed to rock dust in the course of his employment by Burlington Northern when he dumped ballast from railroad cars and when he worked on surfacing gangs or tie gangs.  Burlington Northern provided Olson with disposable paper masks for these tasks, but Olson claims that the masks were "useless" because "[w]hen breathing, and sweating in the summer air, the mask would become moist[, and the] dust would cling to the mask resulting in suffocation if the mask continued to be worn."  Olson states that when he complained about the lack of protective devices to his supervisors, he was told that nothing else could be done.

In March 2001, Olson sued Burlington Northern under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 1-60 (2000), alleging that he suffered injuries to his lungs, hips, knees, back, and "other body parts" as a result of Burlington Northern's negligence. 

In a deposition, Olson testified about his lung injuries.  He said that he had experienced dizziness, "shortness of breath," and "gasp[ing] for air" for a couple of years and that he had seen four medical doctors regarding these symptoms.

To support his lung-injury claim, Olson introduced the report and affidavits of Dr. David Bonham.  Bonham examined Olson at the request of Olson's attorney "to evaluate the presence of any lung disease."  Bonham's report includes "impressions" of "asbestos related pleural disease" and "chronic industrial bronchitis with mild air flow obstruction."  He states in his report that

the patient's respiratory problems are, I believe, related to his exposure to various dusts and other respiratory irritants while working for the railroad. . . .  [H]is industrial bronchitis is related to the very heavy rock dust that he was repeatedly exposed to over the years as well as other dust exposures.

 

Bonham states in his May 2003 affidavit:

It is my opinion that Mr. Olson's primary lung problem is caused by chronic industrial bronchitis.  The cause of chronic industrial bronchitis for Mr. Olson exposure to rock dust has been a known hazard to the medical community for decades, and the causation of chronic industrial bronchitis by exposure to rock dust was being taught when I was going to medical school in the late 60's and early 70's.

 

Bonham further states, "It is also my opinion that any worker exposed to rock dust . . . should have been provided filtration devices that would have prevented the rock dust from getting into his lungs." 

Burlington Northern moved for summary judgment.  The district court concluded that (1) Olson's knee- and back-injury claims were barred by the statute of limitations, and (2) Olson failed to produce evidence necessary to establish the element of duty on his negligence claim for his lung injuries; and the district court granted summary judgment to Burlington Northern.  This court affirmed summary judgment on Olson's knee- and back-injury claims, but it reversed and vacated the district court's order regarding Olson's negligence claim for his lung injuries.  Olson v. Burlington N. & Santa Fe Ry., No. A03-1698, 2004 WL 1614947, at *1 (Minn. App. July 20, 2004).  This court determined that there was a genuine issue of material fact regarding the existence of Burlington Northern's duty.  Id. at *3-*4.

After the remand, Burlington Northern again moved for summary judgment.  The district court granted Burlington Northern's motion, concluding that Olson did not demonstrate that Burlington Northern breached its duty and failed to demonstrate causation.  This appeal follows.

D E C I S I O N

When reviewing an appeal from summary judgment, this court asks whether (1) there are any genuine issues of material fact; and (2) the district court's application of the law was erroneous.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law."  Minn. R. Civ. P. 56.03.  On appeal, this court views the evidence "in the light most favorable to the party against whom judgment was granted."  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

Olson appeals from summary judgment dismissing his lung-injury claim under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 1-60 (2000).  FELA imposes liability on railway companies for work-related injuries that are caused in whole or in part by the company's negligence and allows injured railroad workers to recover for the negligence of their employers.  45 U.S.C. § 51; Lecy v. Burlington N. & Santa Fe Ry.,663 N.W.2d 589, 592 (Minn. App. 2003) (citing Ackely v. Chicago & N.W. Transp. Co., 820 F.2d 263, 266 (8thCir. 1987)).  Both state and federal courts have jurisdiction to hear FELA claims.  45 U.S.C. § 56. 

A FELA plaintiff must prove all of the essential common-law elements of negligence.  Smith v. Soo Line R.R., 617 N.W.2d 437, 439 (Minn. App. 2000) (citing Fulk v. Ill. Cent. R.R., 22 F.3d 120, 124 (7th Cir. 1994)), review denied (Minn. Nov. 21, 2000).  Ordinarily, a defendant in a negligence action is entitled to summary judgment when the record reflects a complete lack of proof on any of the four essential elements of the claim: duty, breach of that duty, an injury, and causation.  Gradjelick v. Hance, 646 N.W.2d 225, 230 (Minn. 2002).  This court previously held that a genuine issue of material fact exists relating to the duty that Burlington Northern owed to Olson.  Olson v. Burlington N. & Santa Fe Ry., No. A03-1698, 2004 WL 1614947, at *3-*4 (Minn. App. July 20, 2004).  Thereafter, the district court granted summary judgment on Olson's lung-injury claim because it concluded that Olson failed to demonstrate Burlington Northern's breach of duty or causation.  Therefore, we now consider only the breach-of-duty and causation elements of Olson's negligence claim.

A summary-judgment motion cannot be defeated by "unverified and conclusory allegations or by postulating evidence that might be developed at trial."  Gradjelick, 646 N.W.2d at 230.  But under FELA, a plaintiff's burden of proof to present a case to the jury "is significantly lighter . . . than it would be in an ordinary negligence case."  Smith, 617 N.W.2d at 439.  Under FELA, "the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought."  Rogers v. Mo. Pac. R.R., 352 U.S. 500, 506, 77 S. Ct. 443, 448 (1957).  And only "‘slight' or ‘minimal'" evidence is required to create a jury question on the issue of negligence in a FELA case.  Mendoza v. S. Pac. Transp. Co., 733 F.2d 631, 632 (9th Cir. 1984); see also Hauser v. Chicago, Milwaukee, St. Paul, & Pac. R.R., 346 N.W.2d 650, 653 (Minn. 1984) (stating that "it takes very little evidence for the plaintiff-employee to avoid a directed verdict" and noting that commentators have suggested that "only a ‘scintilla' of evidence is needed to establish the employer's negligence").

Breach of Duty

Olson first argues that the district court erred by finding that Burlington Northern did not breach its duty to provide Olson a reasonably safe workplace.  He argues that the district court improperly found facts when it determined that Olson had provided no evidence that the masks were "not appropriate."  A railroad company has a duty to provide its employees with a reasonably safe workplace.  Lecy, 663 N.W.2d at 592 (citing Ackley, 820 F.2d at 267).  "A railroad breaches its duty to provide a safe workplace when it knows or should know of a potential hazard in the workplace, yet fails to exercise reasonable care to inform or protect its employees."  Smith, 617 N.W.2d at 439 (citing Gallose v. Long Island R.R., 878 F.2d 80, 84-85 (2d Cir. 1989)). 

Here, the district court found that Burlington Northern "knew of the potential hazard of dust exposure."  Burlington Northern required employees "working around any ballast disturbing activities . . . to conform to the requirements of the Burlington Northern Respiratory Protection Policy for Maintenance of Way Employees."  And it provided disposable paper masks to Olson.  Therefore, Olson's argument against summary judgment on Burlington Northern's breach of duty rests on his assertion that the masks provided by Burlington Northern did not work and that he "complained about the lack of protective devices" but was told that "nothing else could be done."  Olson also relies on Bonham's affidavit to support his argument that Burlington Northern did not provide adequate masks.  Although Bonham does not state that the paper masks were inappropriate, he does state that railroad workers exposed to rock dust "should have been provided filtration devices that would have prevented the rock dust from getting into his lungs."

This court has held that "[a] FELA plaintiff need only present a scintilla of evidence tending to show negligence to survive summary judgment."  Id.  The right to a jury trial is "part and parcel" of the rights afforded to the employees protected by FELA.  Bailey v. Cent. Vt. Ry., 319 U.S. 350, 354, 63 S. Ct. 1062, 1064 (1943).  Other courts have noted that it is difficult for a FELA defendant to avoid a jury trial, see, e.g., Christiansen v. Union Pac. R.R., 136 P.3d 1266, 1270 (Ut. Ct. App. 2006), and that several FELA actions have been submitted to a jury based on "evidence scarcely more substantial than pigeon bone broth."  See, e.g., Harbin v. Burlington N. R.R., 921 F.2d 129, 132 (7th Cir. 1990).

We conclude that Olson's affidavit and deposition testimony and Bonham's affidavit provide at least a scintilla of evidence that Burlington Northern breached its duty of care here.  See, e.g., Murphy v. Union Pac. R.R., 57 P.3d 799, 802-03 (Idaho 2002) (finding that appellant's deposition testimony and affidavit were sufficient to create a genuine issue of material fact); Hahn v. Union Pac. R.R., 816 N.E.2d 834, 844 (Ill. App. Ct. 2004) (holding that the complaint and appellant's deposition testimony demonstrated the existence of a genuine issue of material fact regarding the railroad's negligence).  Therefore, a genuine issue of material fact exists regarding Burlington Northern's breach of duty.

Burlington Northern argues that Olson failed to produce competent, scientific evidence that it failed to provide a reasonably safe workplace.  But the cases relied on by Burlington Northern to support its argument do not address the quantum of evidence required of FELA plaintiffs to survive summary judgment.  See Savage v. Union Pac. R.R., 67 F. Supp. 2d 1021, 1034-38 (E.D. Ark. 1999) (regarding a motion to exclude expert's testimony in which the court discussed the differences of the Daubert standard for admitting scientific evidence and the FELA standard of causation); Mo. Pac. R.R. v. Navarro, 90 S.W.3d 747, 757-59 (Tex. App. 2002) (discussing the sufficiency of the evidence supporting the jury's verdict).  Other courts have refused to impose on FELA plaintiffs the burden to produce technical, scientific evidence to survive summary judgment.  See, e.g., Harbin, 921 F.2d at 132.  And we decline to do so here.

Causation

            Olson also argues that the district court erred by engaging in fact-finding to support its conclusion that Olson failed to demonstrate causation.  Whether a genuine issue of material fact exists is reviewed de novo.  Fairview Hosp. & Health Care Serv. v. St. Paul Fire & Marine Ins. Co., 535 N.W.2d 337, 341 (Minn. 1995).  On a summary-judgment motion, the district court may not weigh the evidence or make factual determinations.  Id.

The district court concluded that Olson "failed to demonstrate causation with the conclusory, unsupported report and affidavits" of his expert.  Burlington Northern asserts that the district court properly exercised its discretion when it determined that Bonham's opinions were inadmissible under the Frye-Mack standard[1] and that, as a consequence, Olson "failed to produce competent evidence to support a finding of causation."  But the district court's order does not mention the Frye-Mack standard for the admissibility of expert testimony or any evidentiary rules.  Neither did the district court make any evidentiary ruling regarding Bonham's methodologies or conclusions; the district court did not find that Bonham's opinion is inadmissible or excluded.  The district court also does not state that without Bonham's testimony or opinion, Olson failed to establish the existence of a genuine issue of material fact regarding the causation of his injuries.  There is no evidentiary ruling for this court to review here.  Rather, the district court erred by weighing the evidence to conclude that Olson failed to demonstrate causation.

We must then determine whether a genuine issue of material fact exists regarding the causation of Olson's lung injury.  Bonham's diagnostic impressions of Olson include chronic industrial bronchitis with mild air-flow obstruction.  Bonham's report states his opinion that Olson's "respiratory problems are . . . related to his exposure to various dusts and other respiratory irritants while working for the railroad."  He also states in his report that Olson's "industrial bronchitis is related to the very heavy rock dust that he was repeatedly exposed to over the years as well as other dust exposures."  Bonham's May 2003 affidavit states, "The cause of chronic industrial bronchitis for Mr. Olson exposure to rock dust has been a known hazard to the medical community for decades, and the causation of chronic industrial bronchitis by exposure to rock dust was being taught when I was going to medical school in the late 60's and early 70's."  In light of the minimal evidence that a FELA plaintiff is required to produce to survive summary judgment, as discussed above, we conclude that Bonham's report and affidavits create a genuine question of material fact regarding whether Olson's injury was caused by his exposure to rock dust during his employment with Burlington Northern. 

Because genuine issues of material fact exist regarding both breach of duty and causation, the district court erred by granting summary judgment to Burlington Northern on Olson's FELA negligence claim relating to his lung injury.

Request for Reassignment

Olson requests that we direct the assignment of a different judge to his case on remand.  He made no motion before the district court seeking the judge's removal.  And this court may decline to address a request to remove a district court judge absent prior consideration by the district court.  Ag Serv. of Am., Inc. v. Schroeder, 693 N.W.2d 227, 236 (Minn. App. 2005).  A judge who has presided at a motion or other proceeding "may not be removed except upon an affirmative showing of prejudice on the part of the judge."  Minn. R. Civ. P. 63.03.  We note that disqualifying bias or prejudice "must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from her participation in the case."  In re Welfare of D.L., 479 N.W.2d 408, 415 (Minn. App. 1991), aff'd, 486 N.W.2d 375 (Minn. 1992).  Olson has failed to demonstrate disqualifying bias or prejudice by the district court judge here.  "[A]dverse rulings are not a basis for imputing bias to a judge."  Ag Serv. of Am., Inc., 693 N.W.2d at 236-37.  Therefore, we deny Olson's request that this court direct the assignment of a different judge to hear his case on remand.

Motion to Strike Footnote

On appeal, Olson moved this court to strike footnote one from Burlington Northern's brief because it refers to Bonham's deposition, which is not a part of the record before this court.  This court will not consider matters not received in evidence in the district court.  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).  And we may strike references in a brief to documents that are not part of the appellate record.  Cf. State v. Dalbec, 594 N.W.2d 530, 533 (Minn. App. 1999).  We do not find it necessary to rule on Olson's motion because we have limited our review to the facts supported by the appellate record.  Cf. Dunham v. Roer, 708 N.W.2d 552, 573 (Minn. App. 2006), review denied (Minn. Mar. 28, 2006).

Reversed and remanded.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] "Minnesota adheres to the Frye-Mack standard to determine the admission of expert testimony based on scientific techniques and principles."  McDonough v. Allina Health Sys., 685 N.W.2d 688, 694 (Minn. App. 2004).  Under the Frye-Mack standard, the proponent of scientific evidence must show that (1) the scientific theory is generally accepted in the relevant scientific community, Goeb v. Tharaldson, 615 N.W.2d 800, 814 (Minn. 2000); and (2) "the principles and methodology used are reliable."  McDonough, 685 N.W.2d at 694 (citing State v. Mack, 292 N.W.2d 764, 768 (Minn. 1980)).